How Private is an Employee's Private Life? - 07/12/2009

Most large employers are sufficiently cautious and mindful of their organisation's standing to include in their employee's contract of employment a contractual duty to avoid any activities outside the workplace that may impact adversely on the reputation of the business. Often the nature of the disapproved activities remains vague and the prohibited hobbies are undefined. The difficulty for employers varies depending on the business and the post the employee holds within the company.

The Times reports that the Human Rights Watch based in New York is investigating the possibility that Marc Garlasco, a senior military analyst with the organisation, has brought the organisation into disrepute by his internet activity relating to his hobby of collecting war memorabilia, including that relating to Nazis. Mr. Garlasco, whilst regretting some of the more immature postings, asserts that because the Nazi cause was so obviously evil it did not occur to him that his colleagues and friends may wonder about his interest in these things.

Employers have to be very careful when investigating and subsequently placing sanctions on an employee for their private activities; in doing so they may expose themselves to accusations of interference in the right to a private life. It can be a tricky judgment between what is merely silly or embarrassing behaviour and what is truly damaging. Clearly if an employee indulges in his or her interest in erotic materials during a lunch break this behaviour may upset or make their colleagues uncomfortable and may, in some circumstances, be observed by clients.

In order to be deemed unacceptable or damaging the hobby or behaviour should directly impact on the ability of colleagues or clients working with the employee or cause damage to the reputation of the business. Max Mosley survived when his private activities entered the public domain as, despite the huge media attention and the questionable nature of his "hobby" it did not impact on his ability to do his job or taint the reputation of his employer. The lawyer at a magic circle firm who published a highly erotic novel was deemed to have damaged the firm's reputation and was sacked.

Both employers and employees have to be careful in this area and should use a commonsense approach with clear guidelines to avoid possible misunderstandings.

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